administrative fines 001/16 - ohsaohsa.org.mt/portals/0/docs/policiesprocedures/sop intimation...

Administrative Fines

The introduction of pecuniary penalties within a broader enforcement

framework.

SOP - Admin. Fines – 001/16

Occupational Health and Safety Authority, 17, Edgar Ferro Street, Pieta’ PTA1533. MALTA

Telephone: 21247677/8

Fax: 21232909 E-mail: [email protected]

mailto:[email protected]

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1 DOCUMENT CONTROL INFORMATION

1.1 Document Reference

Administrative Fines – The introduction of pecuniary penalties within a broader

enforcement framework.

1.2 Synopsis

This document outlines the process that will be adopted by the OHSA for the

intimation of pecuniary penalties for breaches of OHS related offences.

2 OVERVIEW

2.1 In terms of article 38 (3) of the OHS Authority Act (Cap. 424), the Authority may

intimate the imposition of a pecuniary penalty in lieu of instituting criminal

proceedings in a Court of Law, when an offence against the Act or regulations

made under the Act is committed.

2.2 The scope of article 38 (3) is to create a speedy and effective deterrent against

contraventions to the law. A functioning system of intimations will also reduce

the Authority’s dependence on the Police and on judicial proceedings to solicit

compliance with the law.

2.3 The law does not require the Authority to exhaust the administrative remedy

before resorting to criminal procedures, but establishes a discretionary power.

Thus it is up to the Authority to decide as to whether the circumstances of a

case warrant the imposition of an administrative fine or the institution of criminal

proceedings or to take any other action as contemplated by the law. However,

for the sake of objectivity and fairness, this document establishes general

criteria upon which such decisions shall be based.

2.4 This document is also intended to establish those administrative procedures

required for the implementation of article 38 (3) of the Act.

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3 ENFORCEMENT ACTIONS

3.1 The primary duty of an OHS Officer is to ensure that occupational health and

safety are safeguarded by whosoever has a duty to do so. Thus, when a

contravention comes to light, an OHS Officer has an obligation to act within the

scope of the Act, so that the prevailing hazards and risks are controlled. The

types of action that may be taken by an Officer are elaborated upon by the

Enforcement Policy of the Authority.

4 INTIMATION OF PENALTIES

4.1 Contraventions for which a letter of intimation shall be issued have been

identified according to the following criteria:

(i) the contravention does not in itself constitute or lead to an immediate and

serious risk to occupational health and safety, but has the propensity of

leading to a serious risk to health and safety; OR

(ii) The contravention occurs in relation to work which is of a temporary nature

– examples of such works include (but are not exclusively limited to)

construction activities, road works, setting up of exhibitions, erection of

scaffoldings, and use of machinery or equipment.

A non-exhaustive list of such contraventions where a letter of intimation is to be

sent has been drawn up (Annex 1) and will be periodically reviewed.

It is being emphasized that fines will only be issued for contraventions

that are listed in the Annexes, which may be amended by the Authority as

necessary.

4.2 Once a contravention for which a letter of intimation is to be issued becomes

known to an OHS Officer, the Officer shall, within five working days of the

contravention being known, draw up and submit to the Head Technical

Operations (HTO) a contravention report in writing.

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4.3 The report to the HTO shall include the following information:

(i) The particulars of the person(s) responsible for committing the

contravention.

(ii) The date, time, and place where the contravention occurred.

(iii) A brief description of the contravention/s and any other additional

information if practicable.

(iv) Legal references, including any references to any Codes of Practice

and/or any other forms of guidance issued by the Authority.

4.4 The HTO is to ensure that the documents submitted by the OHS officer are as

comprehensive as possible, and in so doing may request additional information

to be inserted in the report or in the intimation letter.

4.5 The HTO shall ensure that before an Intimation Letter is formally issued, the

contravention being cited does not warrant more severe action, including

criminal proceedings, in which case the HTO shall so advise the OHS Officer;

the decision as to whether to issue an intimation letter or to undertake criminal

proceedings will be made by the HTO after consulting the OHS Officer and the

OHSA’s Chief Executive Officer (CEO).

4.6 The HTO shall draw up an Intimation Letter based on the report of the

contravention referred to in 4.3 above. The templates approved by CEO shall be

used by the HTO when sending the Intimation Letters.

4.7 It shall be the responsibility of the HTO to ensure that all intimation letters are

sent to the intimated persons by registered mail.

4.8 For the purposes of this document, an Intimation Letter shall be considered to

have been issued by the Authority, once it is received by the intimated party.

4.9 A register recording all intimations sent shall be kept by the OHSA and updated

and maintained by the HTO or by any other person appointed by the CEO.

4.10 If a penalty is not paid within fifteen working days from the service of the

intimation, the Authority shall commence the process for criminal proceedings to

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be instituted before the judicial authorities as shown by the process flowchart

attached to this document.

4.11 To exercise the highest degree of transparency, OHSA shall implement a

review process, the scope of which is to ensure that the requirements of, and

the conditions established by this SOP are being followed and implemented.

For this purpose, the CEO shall evaluate the process leading to the decision to

issue an Intimation Letter in the case of a representative sample of all letters of

intimation issued by the Authority.

4.12 A record of this review process shall be kept.

5 PROSECUTION

5.1 Prosecution is an essential part of enforcement, but should be undertaken only

as the last resort. If there are valid and substantial reasons for so doing, the

OHSA shall initiate prosecution without prior warning and without any of its

Officers having carried out any other prior or alternative enforcement actions.

In any case, the OHSA shall commence the process for criminal proceedings to

be instituted before the judicial authorities without fail and without any other

enforcement action having been taken before, whenever:

(i) there are repeated breaches of the law, which give rise to significant risk,

especially when a duty holder ignores previous enforcement action or

when there exists a bad record of poor occupational health and safety

standards;

(ii) there is a severe and reckless disregard of health and safety

requirements;

(iii) OHS Officers are intentionally obstructed in the lawful course of their

duties, wilfully given false information and when a person refuses to give

information as requested by an OHS Officer.

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6 MITIGATING CIRCUMSTANCES

6.1 There may be mitigating, particular or special circumstances where although

under normal circumstances prosecution would be undertaken, it would be in

the interest of both parties that an administrative fine is imposed. This

notwithstanding, the application of such a provision remains at the sole

discretion of the Authority. The responsibility for bringing to the attention of the

Authority such circumstances which may lead to the consideration of the

mitigation of such proceedings shall be upon the contravener, duly

substantiating such claims.

6.2 Claims regarding the existence of mitigating and, or particular, and, or special

circumstances shall be addressed to the CEO, who shall decide accordingly

and inform the claimant of the decision, citing due reasons.

7 PAYMENT OF FINES

7.1 The penalty shall become due on the day on which such intimation is served.

7.2 The HTO shall ensure that all dues are collected from every intimated person,

and passed on to the Authority.

7.3 Payment of fines shall be affected within fifteen days (15) of receipt of the

intimation letter by internet banking or by cheque addressed to the Occupational

Health and Safety Authority, 17, Edgar Ferro Str., Pieta`. Alternatively payments

can be made in person at the offices of OHSA between Monday and Friday,

excluding Public Holidays, from 8.00 am - 12.00 (noon) and from 2.00 pm till

4.00 pm (winter), or 8.00 am – 13.00 (summer) The different methods of

payments will be included in the intimation letter issued.

7.4 The Authority shall issue an appropriate receipt for all moneys collected. The

receipt shall include a disclaimer stating that the payment of a penalty does not

in itself constitute a reason for the Authority to stop the process for criminal

proceedings to be instituted before the judicial authorities or any other

enforcement action deemed necessary by law.

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8 GENERAL NOTES

8.1 Officers are to note that the intimation for the payment of a penalty, and the

payment thereof, will not operate as a waiver of the duty of a person to

undertake any measure by which occupational health and safety may be

safeguarded, whether such duty arises out of the Act or any regulation made

there under, or out of an order issued by an Occupational Health and Safety

Officer in terms of the Act. Where, following the payment of a penalty, the

violation of any provision of the Act or any regulation made thereunder persists

regardless of any instructions the Authority may have given for the redress of

the same, the Authority may institute the proceedings referred to in article 38 of

the Act for such continuing violation. In such cases, the OHS Officer involved

shall be guided by the direction given by the HTO and/or by the CEO.

8.2 For the process to be deemed transparent, it is essential that adequate records

are kept, including descriptions of the circumstances of each case as well as the

justifications determining the course of action being taken. It shall be the

responsibility of each OHS employee involved in the process to ensure the

keeping of the required documentation.

8.3 Whereas OHS Officers, being public officers, are requested to maintain

confidentiality, the OHS Authority Act declares the protection of occupational

health and safety as being considered of public interest. Any requests for

information about a specific case, including requests for confirmation as to

whether any administrative fines were imposed by the Authority, need to be

directed to the CEO, and each request for information will be treated on its own

merits according to the parameters established by the OHS Authority Act and,

or the requirements of the Freedom of Information Act and the Data Protection

Act.

8.4 There may be occasions whereby an intimated party requests further information

or clarifications about fines which have been issued by OHSA. An intimated

party may also seek to request OHSA’s authorisation to be allowed to pay the

fine in instalments. In all such instances, the party may be given an appointment

for a meeting to be attended by the HTO and another OHS Officer, whereby the

clarifications and other necessary information are given. With regards to

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requests to pay a fine in instalments, it should be made clear that such requests

are to be forwarded in writing to the CEO, and are considered at OHSA’s

discretion, who will decide on the merits based on the information provided when

making such a request. Minutes of the meeting are to be kept and signed by

both attending officials (the HTO and the OHS Officer). In the interests of good

governance, transparency and equity of application of this SOP, other means of

correspondence which involve only one official (for example telephone calls)

should be discouraged – where such requests are made via an email which is

not addressed to the CEO, a copy of the email should be inserted in the relevant

file and passed on to the CEO.

PROCESS FLOWCHART

Contravention (for which a letter

of intimation is to be issued) comes to light

Intimation of

penalty

Payment of penalty

Payment of penalty

No payment and no remedy

Remedy and no payment

Follow up visit by the OHSA

Follow up visit by the OHSA

Remedy of contravention

No remedy of contravention

No further action

Prosecution

Prosecution for contravention/s

committed

This Process Flowchart only indicates the steps to be taken in the case of

those contraventions for which a letter of intimation is to be issued. The OHS

Authority Act provides for other penalties in the case of other breaches of the

law.

Where, following the issue of a letter of intimation, adequate remedial action is

observed but fine remains unpaid, the OHSA can stop the proceedings and withdraw

all or part of the charges if the fine is paid before criminal proceedings commence.

ANNEX 1 - CONTRAVENTIONS FOR WHICH THE OHSA SHALL ISSUE A LETTER OF INTIMATION

Contravention

Penalty

(€)

Comments

Workplace equipment or machinery in use not

inspected, examined, tested and, or certified

according to OHS legislation.

250

See Schedule I to this document. The stipulated penalty shall apply for

each item of equipment or machinery which has not been examined,

tested and, or certified within the prescribed time from when the

obligation falls due, and, or in cases where (i) no certificate required to

be sent has been sent, or (ii) no entry in a register is made, or (iii) no

register is kept.

Not carrying out a suitable, sufficient and

systematic assessment of all occupational

health and safety hazards and the resultant

risks involved.

250

Legal Notice 36 / 2003, Reg.10.

Employer not performing suitable and

sufficient assessments of the health and

safety risks to which workers are exposed in

consequence of VDU use.

250

Legal Notice 43 / 2002, Reg. 4

Employer not carrying out an assessment of

the occupational health and safety hazards

which may be involved at the place of work,

before engaging or offering work to any young

person.

250


Employer not carrying out an assessment of

the occupational health and safety hazards

which may be involved at the place of work,

before assigning work to any pregnant or

breastfeeding worker or to a mother

250


Levying or permitting to be levied a charge or

deduction of wages of any worker in respect

of anything done or provided in the interests

of occupational health, safety, hygiene or

welfare pursuant to the regulations.

250

Legal Notice 36 / 2003, Reg. 8. The penalty shall be applied to an

organisation, irrespective of the number of employees affected.

Not ensuring the appointment of workers

health and safety representatives.

250

Legal Notice 36 / 2003 – Reg. 13.

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The commencement of work which requires

prior notification, authorization or submission

of plan of work to the OHSA without such an

obligation being fulfilled.

250

Legal Notice 281 / 2004 (construction), Legal Notice 37 / 2003, as

amended by L.N. 6 / 2005 (COMAH), LN 323 / 2006 (Asbestos)

Non notification of any accident which results

in either the death of or a major injury to any

person or, in the case of an employee at work,

in that employee being incapacitated for work

for more than three consecutive days.

250

Legal Notice 52 / 1986 - Reg. 22. The penalty applies for each injury

not notified.

Not complying with obligations laid down in

Schedule IV to Legal Notice 281/2004.

250

Legal Notice 281 / 2004 - Schedule IV

Requesting workers to handle a load, which

by reason of its characteristics or because of

unfavourable ergonomic conditions, involves a

risk particularly of back injury to workers,

without first having taken appropriate

organisational measures, or provided

appropriate mechanical means in order to

avoid the need for manual handling

250

Legal Notice 35 / 2003 - Reg.4 (1)

A client not appointing a project supervisor/s

250

Legal Notice 281 / 2004 - Reg. 3

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A person intentionally or recklessly interferes

with or misuses anything provided in the

interests of occupational health and safety.

250


Not keeping a written or retrievable electronic

copy of a risk assessment when more than 5

workers are employed.

250

Legal Notice 36 / 2003 - Reg.10 (2)

Not providing workers and their

representatives with comprehensible and

relevant information.

250

Legal Notice 36 / 2003 - Reg.12

Worker not taking care of his/other persons'

health and safety in accordance with the

training and the instructions given by an

employer.

250

Legal Notice 36 / 2003 - Reg.15

Temporary workers are not afforded adequate

health and safety protection.

250


A project supervisor not ensuring the

preparation of a health and safety plan

250

Legal Notice 281 / 2004 - Reg. 4 and 5

Workers not cooperating with employer and /

or appointed WHS representatives and / or

250

Act XXVII of 2000 art. 7 (2), LN 36 / 2003 Reg.15

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workers having a specific responsibility for the

safety and health of workers

Employer fails to ensure that where there is a

risk of mechanical contact with moving parts

of work equipment which could lead to

accidents, those parts must be provided with

guards or devices to prevent access to danger

zones or to halt movements of dangerous

parts before the danger zones are reached.

250

Legal Notice 293 / 2016– Schedule I Para 2.11

Employer not providing PPE / C and / or not

ensuring that workers make full and correct

use of that PPE / C

250

Legal Notice 36 / 2003 – Reg. 4

Self-employed person not taking measures to

safeguard one’s own health and safety and

that of other persons who can be affected by

reason of the work which is carried out.

250

Act XXVII of 2000, art. 7 (2)

A person breaks or tampers with any seal

made, or with any monitoring equipment

installed, put up or left by an OHS Officer in a

work place, or in the case of personal

250

Act XXVII of 2000, art. 18 (2)

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monitoring equipment, on a worker.

Mobile crane operated with outriggers on

inadequate supports or unstable ground

250

Act XXVII of 2000, art. 6 and 7

Tower crane not certified after installation and

before being put into service on a site

250


Lifting equipment with suspended loads left

without surveillance

250

Legal notice 293 / 2016, Schedule I, Para. 4.13

Person/s lifted without adequate safety

measures or cage which has not been

certified

250

Legal Notice 293 / 2016, Schedule I, Para. 4.3 Legal Notice 293 / 2016, Schedule lll, Para. 2.2

Person/s lifted on forklift truck without certified

attachments

250

Legal Notice 293 / 2016, Schedule I, Para. 4.3 Legal Notice 293 / 2016, Schedule lll, Para. 2.2

An operator of a COMAH establishment not

preparing a major accident prevention policy

450

Legal Notice 179 / 2015 , Reg. 6


producing a safety report

450

Legal Notice 179 / 2015 ,Reg. 8


reviewing and revising a safety report

450


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An operator not preparing an internal

emergency plan

450



providing information to the competent

authority

450


No person/s designated by an employer to

assist him in undertaking the measures

relating to occupational health and safety.

450


Workers who are entitled to undergo health

surveillance not provided with such health

surveillance.

450



supplying information on safety measures and

on the requisite behaviour in the event of a

major accident

450


Employer not taking measures to prevent

risks:

Failure to prevent risks of falls from

heights;

450

Legal Notice 36 / 2003, Reg. 4, 6 and Act XXVII of 2000, art. 6 (1) &

(2)

19

Failure to ensure that all open edges

are effectively fenced / guarded;

Failure to ensure that work equipment

is operated correctly

Employer not providing adequate first aid

equipment and facilities as are adequate and

appropriate for enabling first aid to be

rendered to whosoever becomes injured or ill

inside the workplace

250


Employer not ensuring the presence at all

times of such a number of first aiders as is

adequate and appropriate in the

circumstances for rendering first aid to

employees if they are injured or become ill at

work.

250


Employer not providing and maintaining a

suitably equipped first-aid room where two

hundred or more employees are at work in a

place of work, or where the type of activity or

the frequency of accidents so dictate

250


20

A self - employed person not providing or

ensuring that there is provided, adequate first

aid equipment to enable him to render first aid

to himself while he is at work, or for others to

give him first aid

250


Employer or self employed person not taking

adequate first aid measures

250

Legal Notice 11 / 2002, Regs. 4,5, 6, 8

Blocked, inaccessible and / or locked

emergency exits

250

Legal Notice 44 / 2002, Reg, 7

Employer not taking the necessary measures

for fire-fighting and evacuation of workers in

the event of serious and imminent danger

250


Employer not ensuring the structure and

solidity of any building or structure

250


Employer not making effective and suitable

provisions to ensure that every workplace,

particularly if enclosed, is ventilated by a

sufficient quantity of fresh or purified air, and

for rendering harmless by the use of

extraction systems, so far as reasonably

250


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practicable, all fumes, dust and other

impurities that may be injurious to health

generated in the course of any process of

work carried out in the workplace

Inadequate or no health and / or safety

signage

250

Legal Notice 45 / 2002

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SCHEDULE 1 (In respect of workplace equipment or machinery)

Type of machinery Applicable regulation

Frequency of

Examination/Testing/Certification

Action required to be

taken by the employer

Goods lifts LN 293 of 2016, Schedule ll –

Para. 1.2 & Para 1.3 Every 6months

Report to be sent to

OHSA.

Lifting machines,

including cranes and

winches

LN 293 of 2016 – Schedule lll

Para. 2.2

Every 12 months

Every 6 months if used for lifting

persons

Copy of certificate to be

kept available for

inspection

Chains, ropes and lifting tackle

LN 293 of 2016 Schedule lll

Para. 1.1(d)(f)

Every 6 months

Register to be kept &

copy of certificate to be

kept available for

inspection Steam water boilers LN 293 of 2016, Schedule l –

Para 8.1

Every 12 months, and after any

extensive repairs

Copy of certificate to be

kept available for

inspection

Passenger and

Passenger goods lifts

LN 231 of 2007, Reg. 8 and 9 Preventive inspection of lifts

in workplaces every six months


OHSA

Passenger and

Passenger goods lifts

LN 231 of 2007, Reg. 6 and 9 Thorough examination of lifts

in workplaces every six years


OHSA

Escalators and Moving

Walkway

LN 293 of 2016, Schedule l –

Para 7.1 (d)

Examination and certification of

escalators and moving walkway

every six months


OHSA

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